R v Turner

In this case the applicant was sentenced for offences relating to the cultivation of cannabis contrary to the Drugs Misuse Act 1986. The applicant had relied on his physical condition as one of the reasons why his case was an appropriate one for immediate release on parole. The sentencing judge disagreed imposing a head sentence of imprisonment for a period of two years and six months to be released on parole after serving six months in actual custody. The custodial component of the sentence was said to be manifestly excessive. The Court of Appeal disagreed. It was difficult to accept this submission for two reasons: it was conceded before the sentencing judge that if his Honour was of the view that actual custody was appropriate the custodial component should be between three to four months; and the applicant’s physical condition at the time of sentence was in existence at the time of the offending, which means it warrants less weight than otherwise would be the case. Leave to appeal against sentence was refused.

Mullins P and Morrison and Boddice JJA

26 May 2023

Background

The applicant entered pleas of guilty to producing a dangerous drug (“Count 1”); possessing things used in connection with producing a dangerous drug (“Count 2”); and possessing a dangerous drug (“Count 3”). [1]. The dangerous drug was cannabis. [1]. The sentence proceeded on the basis that the production and possession had a commercial purpose, but a small amount of cannabis was for personal use. [4]–[6]. The sentencing judge imposed a head sentence two years and six months on Count 1 and lower concurrent sentences on Counts 2 and 3. [1]. The sentencing judge fixed the applicant’s parole release date as 1 September 2023, which in effect, required him to serve six months in actual custody. [1]. The applicant sought leave to appeal against sentence. [2]. The applicant only challenged the custodial component of the sentence. [2].

Whether the custodial component of the sentence was manifestly excessive

The applicant had argued that the custodial component of the sentence was manifestly excessive having regard to the evidence led before the sentencing judge about his physical condition. [2], [19]. The Court observed that there was a “difficulty” with accepting this submission in circumstances where it was conceded before the sentencing judge that if his Honour was against the applicant’s primary submission that he should be immediately released on parole, the custodial component should be between three to four months. [14], [19]. The custodial component was six months. [19]. The Court also observed that this was particularly so in circumstances where the appropriate weight to be given to the applicant’s physical condition at the time of sentence was less than otherwise would be the case because the condition was in existence at the time of the offending: see R v Hinton [2016] QCA 316, [23]–[24].

Disposition

Leave to appeal against sentence was dismissed. [23].

D Kerr